Labor seeks compromise on asylum seekers

This is an edited version of an article first published on Robert Manne's blog Left, Right, Left on The Monthly.

''When the facts change I change my mind. What do you do, Sir?" - John Maynard Keynes

In December, perhaps 200 asylum seekers bound for Australia perished off the coast of Java. No one can now pretend that spontaneous asylum seeker boat arrivals do not carry grave risks. A national search for a new solution to the problem can no longer be postponed.

One difficulty here is political stalemate. Both government and opposition now support offshore processing as a means of deterring further boats. However, since the recent High Court judgment, the government's proposed Malaysian solution has become unlawful and the Coalition's Nauru solution legally uncertain. Both Labor and the Coalition stubbornly refuse to support the other side's proposed amendment to the Migration Act.

The tragic consequences are now apparent. Recently there has been an increase in the number of boats setting out from Indonesia for Australia. Two have sunk. A large number of people have drowned.

There is also an ideological dimension of the stalemate. Since the introduction of the Pacific Solution in late 2001, asylum seeker policy has been one of the most explosive issues of the battle between left and right. In both camps there has been dishonesty.

John Howard's defenders have been unwilling to concede that the Pacific Solution undermined international law and was extraordinarily cruel. Because of Australian policy, thousands of lives of those interned on Nauru were blighted. The right does not concede this terrible cost.

For its part, the left has been unwilling to concede that the Pacific Solution succeeded in deterring the boats. Between 1999 and late 2001, 12,176 asylum seekers arrived by boat. In the years of the Pacific Solution - 2002 to 2008 - 449 arrived. Since its abandonment, 14,008 asylum seekers have reached Australian shores.

The left's unwillingness to acknowledge the obvious has been of great political significance. Following Kevin Rudd's election in 2007 a wise asylum seeker policy would have involved leaving the Pacific Solution intact but humanising policy by increasing the annual quota of refugees and ending mandatory detention. The internment camps on Nauru were virtually empty. The undeniable cruelty of the policy had reached its natural end.

No one on the left with an interest in asylum seeker policy - and I include myself - was far-sighted or independent or courageous enough to offer the incoming Rudd government such advice.

With the return of the boats, the ideological contest between left and right erupted again. One issue was whether the spontaneous arrival of the boats from Indonesia posed an unacceptable risk to the lives of asylum seekers. The left believed that Howard supporters were using this issue opportunistically. If they cared about the wellbeing of the asylum seekers they would not have treated them so cruelly. The trouble here was that even though the argument about dangers facing asylum seekers was indeed often advanced in bad faith, this did not prove that the dangers were not real.

Similarly, the left was often suspicious about how rhetoric about the evils of the people smugglers was used to justify punitive policies. People smugglers had saved many wartime Jewish refugees. This argument did not, however, prove that those involved in the contemporary trade were not what the defenders of the deterrent policies claimed - contemptible human beings.

In December these arguments were resolved. Many desperate people died because a people smuggler was willing to massively overload a frail fishing boat during the monsoon season for about $5000 a head. Whoever was responsible is more akin to a mass murderer than a modern-day Oskar Schindler.

For all Australians with an interest in the wellbeing of asylum seekers, but especially for the former opponents of the Howard policy like myself, the tragic events of the weekend demand self-scrutiny and a search for some plausible new policy. What follows is a blunt summary of the position I have now reached:

There is no possibility of finding a solution to the problem of asylum seeker boat arrivals that will not be seriously morally, legally and politically flawed.

There is probably no alternative to some form of offshore processing. Public opinion is opposed to the spontaneous arrival of asylum seeker boats. We now know that onshore processing will not stop the boats. We now also know that boats sailing from Indonesia to Australia will never be safe.

With regard to offshore processing, so far only two models have emerged. One is the Malaysia solution. Its critical and probably insuperable moral and legal problem is that it means Australia abandons 800 people, for whom we have involuntarily assumed responsibility, to a necessarily uncertain fate.

The second model is an offshore processing centre on Nauru or Manus Island. The advantage of this option is that the centre could be placed under Australian control, with decent health, accommodation and education facilities. The obvious problem with such an offshore processing camp is that it might not succeed in its deterrent purpose. One solution here is to nominate in advance the number of those found to be refugees that Australia will accept each year from the camp, and to admit that number on the basis of date of arrival. The likelihood of a long wait should act as a powerful deterrent.

Once offshore processing is established, the legislation permitting mandatory detention should be repealed. The memory of the dreadful things that happened in the Australian asylum seeker detention camp archipelago will shame later generations of Australians.

If there are almost no more spontaneous boat arrivals, Australia should move at once to the policy now favoured by the Immigration Minister, Chris Bowen - an increase in the annual quota of refugees from 13,750 to 20,000. Many should be refugees marooned in Indonesia.

December's tragedy should act as a reality check - to both Labor and the Coalition; to both left and right. The search not for the perfect but for the least-bad asylum seeker policy can no longer be delayed.